By Shivangi Singh, Amity Law School, Lucknow.
On March 12, the Rajasthan Assembly unanimously passed a Bill conferring capital punishment on those found guilty of sexually abusing children aged 12 or below. Rajasthan standing fourth in the crimes against women categories, sort this bill to be the need of the hour. The Bill, according such harsh punishment, i.e., death penalty, would restrain individuals from committing crime in the future, the Rajasthan Government personnel stated. Rajasthan is the second State, after Madhya Pradesh, to try and move towards implementing this countermeasure against the increasing cases of child abuse. The Haryana Government passed a similar Bill on March 15.
Through this Bill, Rajasthan Government is striving to portray itself as taking a sturdy step towards curbing crimes against women. Ironically, the same government had, only recently, vociferously supported the centuries-old patriarchal ideas of community honour, in which it was considered better for women to kill themselves rather than be taken over by an enemy army.
The Criminal Laws (Rajasthan Amendment) Bill, 2018, is, to an extent embedded in the same concept. By introducing capital punishment for rape of minors, it suggests that victims of the crime suffer a fate similar to death. However, the provision for death penalty completely avoids significant changes needed to make the justice system responsive to survivors of sexual assault and to circumvent victim shaming. Preventive measures need to be taken, so as to avoid such incidents from occurring in the first place.
Several child rights experts agree, that putting in place a provision awarding death penalty for rape of minors is not likely to make any contribution towards making children safer. All it will do is give expression to the instinct to pin the blame for a larger social problem on a few individuals alone.
Crying out for major changes
The hospitals in Rajasthan still seek information on the status of the hymen, and the doctors continue to practice the ‘two-finger test’ in rape cases, as mentioned in the Human Rights Watch report from December 2017. The maligned two-finger test that is used by doctors to determine whether the girl is habitual to sexual intercourse or not, has been opposed and further research has found to recognise the fact that this test is in no way scientific, and should not be performed.
The Supreme Court in Lillu @ Rajesh and Anr. v. State of Haryana [(2013)14SCC643] held that the two-finger test on a rape victim violates her “right to privacy”. The child is made to remember and recount her agony many times over, which is against the provisions laid down in the Protection of Children from Sexual Offences Act, 2012. The Court also established that the rape survivors are entitled to legal recourse that does not re-traumatize them or violate their physical or mental integrity and dignity and that such horrendous medical process shall be completely put an end to.
Several cases of sexual assault go unreported owing to the fear that the girl child may be socially boycotted or that no one would marry her. Further, victimisation by authorities during the investigation of a rape only worsens these fears.
Counter-Argument
After the Rajasthan Assembly passed the Bill, a few human right activists raised objections asking whether it was really possible to curb sexual crimes against children by instating death penalty, where the government has failed to properly implement the Protection of Children from Sexual Offences Act, 2012. Capital punishment is already a part of the Penal Code of the country, but it has had little effect in reducing crime.
A severe punishment will not act as a deterrent for such crimes. It is the government that has to work on risk gauging and management, cognitive attitude treatment and community protection measures, which might prove to result in better outcomes.
According to various studies, in most of the child abuse cases, the perpetrator is either a member of the family or someone who is an acquaintance of the child. Keeping this in mind, the converting of punishment into a more severe one, will only result in making such heinous crimes go substantially under-reported.
The definition of ‘rarest of rare case’ or heinous crime will solidly differ from case to case and Judge to Judge. It cannot be adjudged as the sole parameter for deciding on whether death penalty should be adjudicated for a particular case or not. Also, it will be unjust and dishonourable to compare one child’s abuse to another, merely for the purpose of knowing what counts as heinous and what doesn’t.